Supreme Court Justice Stephen Breyer speaks during an event at the Library of Congress on Feb. 17, 2022 in Washington. | Pool photo by Evan VucciAnkush Khardori is a senior writer for POLITICO Magazine and a former federal prosecutor at the Department of Justice, where he specialized in financial fraud and white-collar crime. He has also worked in the private sector on complex commercial litigation and white-collar corporate defense.
That is not my view. Perhaps their candidacy was supported by people who have political views, but what they were supporting was the nomination and election or appointment of a judge who would think this is the right way to go about a deciding constitutional or statutory case. And that right way has more and more become a kind of literalism — a kind of textualism, a kind of originalism.
The more traditional method being — yes, of course, start with the words. If the word in the statute is “carrot,” that does not mean “fish.” But go on. Why did someone write those words? What was the purpose? What are the consequences ? Will they further that purpose? And consistent with the values that are written — democracy, human rights — into our own constitution?
In the 1860s, after the Civil War, they wrote words designed to protect some people, but the theory of who is part of this community — America, which precedes through democratic means — was quite different then than it is now. And I would say to him: “Yes, but we if we adopt your method, your method of interpreting the Constitution, or the statutes, we will have a Constitution that no one wants.” Because the world does change, not necessarily so much in terms of values, but certainly in terms of the facts to which those values are applied.
Power flowed to the administrative agencies, and there was a tendency to allow Congress greater leeway in trying to pass those laws that would help the New Deal. But by the time of the New Deal, no one — or hardly anyone — thought that laissez-faire economics alone would solve the problems facing the country, which had 24 percent unemployment, which had a terrible depression, where people were willing to give up on democracy, lots of them.
So, on the two promises — clarity, simplicity, definiteness, and on the other hand, keeping the judges from substituting their own views for what is the law — textualism is just as bad. Those promises are broken. And worse than that, we go back to a system where the values in the Constitution — or the purposes of new laws — will have a much harder time taking effect.
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